Indefinite detention on undisclosed grounds is “the stuff of nightmares”, British judge says: US Supremem court may decide whether “war on terror” is a real war

The Pentagon has said it hopes eventually to put up to 80 detainees on trial for war crimes by special military commissions. Even if acquitted, they may still be held as enemy combatants for the rest of the “war”, reported The Economist (6/10/2007, p.61).

British court strikes down unclear, indefinite detention laws for UK: In December 2004 the House of Lords, Brit­ain’s highest court, judged this system to be incompatible with the European Con­vention. For Lord Scott, one of the law lords involved, indefinite detention on un­disclosed grounds was “the stuff of night­mares”, reminiscent of a Stalinist regime.

UK introduces extensive “control orders” instead: The law was duly scrapped. But it was re­placed by new powers allowing the home secretary (not a judge) to impose an indefi­nitely renewable “control order”—including electronic tagging, a ban on phone and internet use, and strict curfews amounting at times to virtual house arrest—on any suspected terrorist, British or foreign.

Even new system is a mess: The new system seems as riddled with problems as the old, and almost as unfair. In its latest report on control orders, in Sep­tember, the Home Office said three of the 14 people subject to the regime had ab­sconded. Several people have had their or­ders quashed by judges who again found the measures incompatible with the Euro­pean Convention. The government has ap­pealed to the House of Lords, which is ex­pected to pronounce later this month.

Court rules against you? Opt out: In the final months of Tony Blair’s gov­ernment, ministers said they were pre­pared to “take the nuclear option” and opt out of the convention again if the law lords’ ruling went against them. That threat has not been repeated by the new prime minister, Gordon Brown. But he may yet try similar moves.

New laws to extend detention period without trial: He has already announced plans for a new anti-terrorist law—Britain’s fifth since 2000. Among his proposals is an extension of the maximum time a suspected terrorist can be held with­out charge from 28 days, already the lon­gest in the West, to 56 days. Most democra­cies allow no more than three days. France permits four; Greece six. In June 2004, the Supreme Court ruled that habeas cor­pus remained available to everyone de­tained on American soil, unless explicitly suspended. The case involved Yaser Esam Hamdi, an American citizen being held as an unlawful enemy combatant on a naval brig in Virginia. Two years later, in a case involving a Guantánamo detainee, Salim Hamdan, the Supreme Court said the basic protections afforded to all wartime detain­ees under the Geneva Conventions ap­plied to everyone, even to unlawful ene­my combatants outside America. Many hope the Supreme Court will seize this opportu­nity to give a view on whether Bush’s “war on terror” is a real war. In Britain, too, Parliament has baulked at some of the government’s demands.

British backbench revolt in 2005: In 2005, when Blair sought to push through a bill raising the time a suspected terrorist could be detained from 14 to 90 days, his backbenchers revolted, eventu­ally settling on the compromise of 28 days, with regular judicial oversight.

French system allows for lengthy detention without charges: Some Brit­ish officials have been looking with envy at civil-law countries like France, where the criminal-justice system allows deten­tion for months, even years, after a suspect has been formally “placed under investi­gation”, but not yet charged. Police can also continue to interrogate suspects during that time. But most legal commentators believe that if the French model were copied in this area, an unbearable blow would be dealt to England’s common-law system. And despite the fears of civil libertarians, there are still judges and legislators who think that system worth preserving.